Judgment

S.B. Sinha, J.—This Appeal under Section 379 of the Code of Criminal Procedure, 1972 (Act 2 of 1974), read with the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, arises out of a Judgment and Order dated 7th October, 1998 passed by the Gwalior Bench of Madhya Pradesh High Court in Criminal Appeal No. 14 of 1984 whereby and whereunder Judgment and order dated 27th September, 1982 passed by Shri S.K. Jain, Sessions Judge, Muraina (M.P.) acquitting the Appellants herein was set aside.

2. On 20th December, 1981 at about 10.00 A.M. the incident took place, in relation whereto, a First Information Report was lodged at about 6.30 P.M. at Ambah Police Station. The said Police Station is said to be situated at a distance of 9 Km. from the place of occurrence.

3. The First Information Report was lodged by Rajvir Singh-(PW.1). He stated that on 19th December, 1981 at about 8.00 P.M. he had heard a commotion and came out from his house and found that the Appellants-herein had a brawling with his grandfather Vidya Ram (deceased) purported to be in connection with the latter’s conduct vis-a-vis a girl (daughter of Birbal Singh). The Village people, however, pacified the parties. Vidya Ram (deceased) complained to him that the Appellants-herein had made false allegations against him in relation to the girl in question.

4. As regards the incident in question, the first informant alleged that the deceased (his grandfather), as usual at 5.00 O’clock in the morning on 20th December 1981, had gone towards the bank of river Chambal to see the vegetable field. The Appellants herein were seen carrying Bhala (spear) and Lathi respectively and proceeding towards the river from the village. At about 11.30 A.M. Mangal Singh PW.2 (cousin brother of the informant), who had also gone to the bank of the river for the purpose of bringing grass, came and told him that the Appellants herein had assaulted the deceased with Lathi and Bhala (spear) whereupon he long with Chob Singh-PW.4 and Tula Ram went to the said place and found the deceased lying in an injured condition. The injured was thereafter brought to the village on a chorpoy (cot). He was thereafter taken to the Ambah Hospital where he was declared dead.

5. Upon registration of the said First Information Report, the investigation in relation to the offence was taken up by Shri N.M. Singh Chandel- PW.7. During investigation he prepared a site plan which was marked as Ex. P.3. He had also seized blood stained earth. The Appellants were arrested on 29th December, 1981. One Barchhi (spear) Ex. P.10 and Lathi Ex.P.11 were also seized. It is also not in dispute that during investigation another site plan was prepared by the Patwari of the village which was marked as Ex. P.13. In both the site plans places wherefrom two persons, namely, Shivrajsingh and Motiram were said to have witnessed the occurrence as eye witnesses were shown. It is also not in dispute that the statements of the said Shivrajsingh and Motiram were recorded under Section 161 of the Code of Criminal Procedure but the same were neither filed along with the charge sheet nor were they examined.

6. Before the learned Trial Judge 7 witnesses were examined by the prosecution to bring home the charge against the accused.

7. The evidence of PW.2 Mangal Singh, who is a minor, is of some significance in this case. He was the only eye witness. Besides him, the first informant was examined as PW.1. Dr. V.K. Gupta who conducted the post mortem examination on the body of the deceased Vidya Ram was examined as PW.5. Nine ante mortem injuries were found by Dr. Gupta on the body of the deceased.

8. It further appears that Barchhi (spear) and Lathi which were said to have been recovered from the Appellants herein were sent for chemical examination. One V.K. Bajaj, Assistant Chemical Examiner of the Government of Madhya Pradesh, F.S.L. Sadar, submitted a report showing, inter alia, the presence of blood on the said Lathi (marked b